Another day, another lawsuit against the NCAA. If you go back to the landmark decision in NCAA v. Board of Regents, I think you would find that since that day, little time has passed that the NCAA was not defending itself against an antitrust suit. And for good reason. The NCAA lacks any sort of statutory antitrust exemption; only the NFL has one of those and it is limited. Plus the NCAA’s antitrust exemption is not as well established as those that encompass much of the professional sports world.
So when the NCAA does something that the Association and its leadership call “unprecedented” and “unique”, it should be as no surprise that someone challenges the NCAA on antitrust grounds. Regardless of whether Pennsylvania Governor Tom Corbett is the right person to do that or what the motivations are, this lawsuit is not frivolous. It challenges something new the NCAA has done in an area of law that no reasonable person can called settled.
But it is precisely because what the NCAA did is so outside of its normal business that I have to disagree with Michael McCann that this has the potential to be a landmark case in NCAA history. Despite the bad press that would come from losing this case or the defamation case brought by Todd McNair, only the O’Bannon licensing case will have lasting impact if the NCAA loses.
If the NCAA loses a case where it sanctioned a school for crimes committed by a coach, it would just put the Association back at the same place most people thought it was in October 2011. The NCAA has taken great pains to point out that the Penn State case is not supposed to become business as usual. While losing this lawsuit might embolden others to challenge NCAA decisions, it would not be a blow against the normal rules and procedures of the Association. In fact, one possible outcome of the case might be that Penn State has to go through the normal infractions process.
Lawsuits like those filed by Pennsylvania and Todd McNair get easier to win the more it looks like the NCAA went out-of-bounds. But if the NCAA did not follow its own rules, then the case will rarely include a judgment about the NCAA’s policies. The NCAA ends up with egg on its face and a judgment to pay rather than an order to change how they do business.